Termini generali e condizioni

Based on the general terms and conditions of the VERTAZ technical trade association, September 2009.

1. General

a. These general terms and conditions (“General Terms and Conditions”) are part of each quotation submitted by the private company RAD Torque Systems B.V. (Chamber of Commerce no. 53556542) (“RAD B.V.”) and of each agreement under which RAD B.V. delivers items.
b. “Purchaser” is understood to mean the person requesting a quotation and/or purchasing items from RAD B.V.
c. Deviating terms and conditions are only part of the agreement if and to the extent that RAD B.V. and the Purchaser have explicitly agreed such in writing.
d. These General Terms and Conditions apply to all of the contractor’s quotations, as well as to the creation, the contents and the performance of all of the agreements concluded between RAD B.V. and the Purchaser, to the exclusion of the Purchaser’s conditions of purchase or other terms and conditions. The Purchaser’s general terms and conditions are hereby explicitly rejected.
e. In the event of any conflict between the agreement provisions and the General Terms and Conditions, the agreement provisions will prevail.

2. Quotation

All of RAD B.V.’s quotations are free of obligation, unless they include a term for acceptance. If an offer free of obligation is accepted by the Purchaser, RAD B.V. will be entitled to revoke the offer within three working days of receiving the acceptance.

3. Creation of the agreement

a. The agreement is not effected until it is confirmed in writing by RAD B.V.
b. The quotation submitted by RAD B.V. and this confirmation are deemed to fully reflect the agreement with the Purchaser.

4. Performance of the agreement

RAD B.V. may instruct third parties to perform the agreement in full or in part if it considers such desirable. RAD B.V. is responsible for proper performance of the agreement by these third parties.

5. Communication

a. All communications between RAD B.V. and the Purchaser may be effected electronically unless the law provides otherwise.
b. If the General Terms and Conditions or the agreement provide that a statement must be made in writing, it may also be made electronically, provided that the electronic message can be printed.
c. The Purchaser is personally responsible for saving and/or printing electronic
communications. The version of the electronic communication saved by RAD B.V. will serve as proof thereof, except if the Purchaser can present proof to the contrary.
d. Except in the event of proof to the contrary, electronic communications are deemed to have been received on the day of transmission. Any IT failures at the Purchaser’s as a result of which electronic communications are not received are at the expense and risk of the Purchaser.

6. Prices

a. Prices are exclusive of turnover tax and other government levies, and transport costs. RAD B.V. is entitled to charge these costs to the Purchaser.
b. If the price of any cost price determining factors increases after the agreement is concluded, RAD B.V. will be authorised to charge this price increase to the Purchaser, provided that the agreement has not yet been performed in full at the time of the price increase. The Purchaser is obliged to pay for the price increase when paying the principal or the next agreed instalment.
c. In the event of changes or additions to the agreement made at the Purchaser’s request, RAD B.V. may increase its prices according to its usual rates. RAD B.V. is never obliged to meet such a request and may require that a separate written agreement be concluded to this end.

7. Invoicing and payment

a. Payments must be effected within 30 days of the invoice date. If the contractor has not yet received payment in full or in part after the end of this period, the client is in default and owes interest of 1% per month, in which respect a part of a month is regarded as one month. All costs incurred by the contractor in relation to overdue payments, such as judicial and extrajudicial costs, including costs for legal assistance, bailiffs and debt collection agencies, will be borne by the client. Extrajudicial costs are set at a minimum of 10% of the invoice amount, with a minimum of € 150 excluding VAT.
b. At RAD B.V.’s first request, the Purchaser is obliged to provide security considered adequate by RAD B.V. with regard to the payment of the amount owed under the agreement. If this request is not met or not met in due time, RAD B.V. is authorised to suspend delivery or to terminate the agreement and recover its losses from the Purchaser.
c. Everything that RAD B.V. can claim from the Purchaser pursuant to any agreement is immediately due and payable if:
(1) a payment term has been exceeded;
(2) attachment is levied on the Purchaser’s items or claims;
(3) in the event that the Purchaser is a legal entity, the Purchaser is dissolved, is liquidated, has been declared insolvent or files for a suspension of payments;
(4) in the event that the transaction party is a natural person, the transaction party requests to be granted judicial debt adjustment, is placed under guardianship, or dies.
d. The Purchaser’s right to deduct its claims against RAD B.V. is excluded.

8. Delivery period

a. The delivery periods are estimated by RAD B.V. and do not constitute a best-efforts obligation for RAD B.V. in that regard. RAD B.V. considers the circumstances currently known to it when determining its delivery periods.
b. In the event of circumstances other than those known to RAD B.V. when it determined the delivery period, RAD B.V. may extend the delivery period for the time necessary to perform the agreement under those circumstances.
c. If RAD B.V. suspends its obligations, the delivery period and/or performance period will be extended for the duration of the suspension.
d. Any liability on the part of RAD B.V. as a result of exceeding the delivery period is excluded.

9. Delivery of items

Delivery is effected EX WORKS (EXW) Soest. in accordance with the Incoterms 2000. The risk associated with the item will be transferred at the time that RAD B.V. makes the item available to the Purchaser. Loading and unloading risks are borne by the Purchaser. Delivery to customers within The Netherlands with an invoice value over Euro 100,- will be delivered Carriage paid to (CPT).

10. Retention of title

a. After delivery, RAD B.V. continues to be the owner of all the items it has delivered for as long as all of its current and future claims with regard to deliveries of items and related activities, the amounts referred to in Article 7 of these General Terms and Conditions, the collection costs and its other costs and losses have not been paid in full.
b. As long as a retention of title rests on the items delivered, the Purchaser may not encumber them outside of its day-to-day operations.
c. After RAD B.V. has invoked its retention of title, it may recover all of the items it has delivered. The Purchaser shall allow RAD B.V. to enter the place where these items are located.
d. If RAD B.V. cannot invoke its retention of title as a result of confusion, deformation or accession of the delivered items, the Purchaser is obliged to pledge the newly formed items to RAD B.V.

11. Complaints

a. Any complaints of the Purchaser with regard to defects of the performance agreed must be submitted immediately to RAD B.V. in writing, stating reasons, and in any event within seven (7) days of delivery of the items.
b. Defects that cannot reasonably be detected within seven (7) days will be brought to RAD B.V.’s attention in writing, stating reasons, immediately after the defects are detected, but no later than one (1) month after delivery of the items.
c. After the period referred to in Article 11.b. has lapsed, the Purchaser can no longer rely on any defects with regard to the performance agreed.
d. Complaints regarding a delivery will, in any event, not be honoured if RAD B.V. is not given an opportunity to investigate such complaints. At RAD B.V.’s request, the Purchaser shall return the items to which a complaint pertains or parts thereof in accordance with the provisions of Article 12 of these General Terms and Conditions. Until RAD B.V. gives its permission as referred to in Article 12.a. of these General Terms and Conditions, the Purchaser shall retain ownership of the items to which the complaint pertains at its own expense and risk.
e. If and to the extent that RAD B.V. accepts a complaint concerning delivered items pursuant to this Article, it shall, at its own discretion, (i) repair the defect, (ii) replace the defective item, or (iii) take back the item and credit the Purchaser for the price of the relevant item. The Purchaser cannot additionally claim entitlement to any form of damages.
f. In the event that the defect is repaired or the defective item is replaced, the provisions of Article 12 of the General Terms and Conditions apply again in that regard.
g. Filing a complaint does not release the Purchaser from its payment obligations vis-à-vis RAD B.V. At such time, the Purchaser also does not have the power to suspend payments.

12. Return shipments

a. Return shipments require RAD B.V.’s prior written consent.
b. All return shipments made by the Purchaser must be delivered carriage paid at all time, stating the invoice number and the date of delivery.
c. RAD B.V. taking receipt of items returned by the Purchaser does not constitute an acknowledgement of non-performance.

13. Warranty

a. New tool warranty:
RAD B.V. guarantees the proper performance of the items delivered for a period of twelve (12) months after delivery to the final customer and is limited to fiftheen (15) months after the original RAD calibration date.
Once a tool is beyond its new tool warranty, RAD B.V, for a period of three (3) months from the date of repair, will replace or repair for the original purchaser, free of charge, any part or parts, found upon examination by RAD B.V., to be defective in material or workmanship or both. If any product or part is replaced or repaired under the terms and conditions of this warranty, that product or part will carry the remainder of the warranty from the date of original repair. To qualify for the above mentioned warranties, written notice to RAD B.V. must be given immediately upon discovery of such defect, at which time RAD B.V. will issue an authorization to return the tool. The defective item must promptly be returned to RAD B.V., all freight charges prepaid. When returning a tool, the reaction arm(s) being used with the tool must also be returned.

14. Liability

a. Except to the extent that the Purchaser demonstrates that loss or damage is the direct result of a wilful act or deliberate recklessness on the part of RAD B.V., RAD B.V. is not liable vis-à-vis the Purchaser, the latter’s personnel or third parties for any direct or indirect loss or damage in connection with the agreement or the performance thereof. The Purchaser indemnifies RAD B.V. in this context against all liability vis-à-vis third parties.
b. In all cases, RAD B.V.’s liability is limited to the amount of the payment under the relevant liability insurance. If RAD B.V.’s insurer, for any reason whatsoever, does not pay or if the relevant liability insurance does not provide cover, RAD B.V.’s liability will, in all cases, be limited to:
(1) the amount of the net price agreed in the agreement to which the event causing the loss or damage directly pertains; or
(2) if partial deliveries have been agreed, the amount of the agreed net price of that part of the agreement to which the event causing the loss or damage relates the most.
c. RAD B.V.’s liability will never exceed € 15,000 per event or per series of events with the same cause.
d. Trading losses such as lost profits and losses resulting from business interruption will never be eligible for repayment.
e. Any rights of action of the Purchaser vis-à-vis RAD B.V. expire as a result of the mere lapse of one (1) year following the event that led to the relevant right of action.
f. The Purchaser indemnifies RAD B.V. as well as the latter’s personnel and agents against all third-party claims, irrespective of the reason, that are in any way related to the agreement and the performance thereof. RAD B.V. will only be liable vis-à-vis the Purchaser if and to the extent that the relevant liability must be borne by RAD B.V. pursuant to the relevant agreement and these General Terms and Conditions.
g. If the items have not been produced by RAD B.V., any liability on the part of RAD B.V. vis-à-vis the Purchaser is limited in all cases to the amount for which RAD B.V.’s supplier will be liable vis-à-vis RAD B.V.
h. The Purchaser indemnifies RAD B.V. against all third-party claims on account of product liability resulting from a defect in a product that the Purchaser supplied to a third party and that consisted entirely or partly of products and/or materials supplied by RAD B.V.

15. Force majeure

a. In the event of force majeure at RAD B.V., the latter is authorised to extend
the agreed delivery period and/or performance period for the duration of the force majeure or to terminate the agreement if it has not yet been performed in full. This does not create any obligation for RAD B.V. to pay damages.
b. In these General Terms and Conditions, force majeure is construed to mean, in addition to what is interpreted as such in the law and case law, all external causes, whether anticipated or unanticipated, beyond the control of RAD B.V., but which render RAD B.V. unable to perform its obligations. This includes strikes at the business of RAD B.V. or that of third parties. RAD B.V. also has the right to invoke force majeure if the circumstance hindering performance or further performance of the agreement commences after RAD B.V. should have performed its obligation.
c. RAD B.V. may suspend the obligations under the agreement as long as the force majeure continues. If this period continues for more than two months, each of the parties is entitled to terminate the agreement without any obligation to pay damages to the other party.
d. To the extent that RAD B.V., at the time the force majeure commenced, had already partly performed its obligations under the agreement or is able to perform the same, and the performed part or part to be performed has independent value, RAD B.V. is entitled to invoice the part already performed or to be performed separately. The Purchaser is obliged to pay such invoice as if there were a separate agreement.

16. Disputes

a. All agreements between the Purchaser and RAD B.V. are governed by Dutch law.
b. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG – Vienna, 11 April 1980) is excluded, as are all other international regulations that may be excluded.
c. All disputes ensuing from or related to these agreements will be exclusively submitted to the Dutch court. Disputes will be adjudicated by the competent court in the judicial district of Utrecht, the Netherlands, without prejudice to the provisions of Articles 108 and 108a of the Dutch Code of Civil Procedure. RAD B.V. furthermore has the right to submit disputes to the competent court of the client’s place of residence.
d. If the provision of Article 16.c. does not apply, RAD B.V. is still authorised to commence legal proceedings at the court that is competent in that case.

17. Other provisions

a. If any provision of these General Terms and Conditions is null and void or nullified, the other provisions of these General Terms and Conditions will remain in full force and effect and RAD B.V. and the Purchaser shall consult mutually in order to agree on a new provision to replace the invalid or nullified provision, in which respect due account will be taken of the purpose and purport of the invalid or nullified provision.
b. All quotations as well as the performance of the agreement are based on the information made available by the Purchaser. The Purchaser guarantees that this information is correct and complete.
c. The headings of these General Terms and Conditions are for ease of reference only and are not part of these terms and conditions.
d. RAD B.V. is entitled at all times to amend these General Terms and Conditions.

November 2011
Filed with the Utrecht District Court under no. 261/2011.